Lode Warriors

For Kay Howe, the remote Lisbon Valley in southeast Utah is a place to escape to. Just across the state line from Colorado, the uninhabited valley offers sweeping views of two states. "When you're up on top of Three Step Mesa, you have a knockout view of the La Sal Mountains, and you can see the San Juan Mountains and all the canyons that go into the Dolores River," says Howe, a single mother of four who lives 45 miles away, in Moab. "It's a gorgeous area, absolutely beautiful."

Howe and three friends bought a few acres of land near the valley in 1995, making plans to eventually build a small vacation home there. She relishes the isolation and quiet of a spot far from the tourist bustle of Moab. "There's not the light of one house or ranch for twenty miles," she says.

But decisions made hundreds of miles away in downtown Denver could disrupt Howe's plans. Denver-based Summo Minerals Corporation has proposed a large copper mine on 1,000 acres in the Lisbon Valley. That proposal calls for digging huge pits in the valley, piling up ore from those pits, and dripping sulfuric acid onto those piles to leach copper from the ore.

Summo has tried to keep a low profile since being formed in 1993. It hasn't actually mined anything yet and sees itself as more responsible to neighboring communities than most mining firms. Yet today the company has become the latest poster child in the ongoing battle over federal mining law. And the Lisbon Valley is ground zero in a bitter controversy that already boasts allegations of a government conspiracy and an attempted back-room deal, as well as numerous examples of how traditional attitudes toward mining in the West have started to change.

For Summo, the irony is that if ever there was a perfect site for a copper mine, the Lisbon Valley is it. The stretch of high desert doesn't quite qualify as the middle of nowhere, but it comes close. It's been mined before, and officials with the federal Bureau of Land Management who are responsible for the land regard it as an ideal spot for a new mine. As little as ten years ago, it's likely no one would have thought to challenge Summo's right to dig there.

They have now.

Summo's introduction to the brave new world of mining started last year in New Mexico. After the company proposed building a mine near Taos, an Indian tribe accused the company of planning to destroy a sacred mountain, and farmers and ranchers said they feared contamination of the Rio Embudo and Rio Grande rivers from mine runoff. The almost unanimous opposition to the mine--and the good jobs it would bring to a poor area--startled the company.

"I got wind that there was a meeting being held at the Picuris Pueblo, which is adjacent to our property," says Gregory Hahn, president of Summo. "I felt it was important to meet with them. We were shocked by their opposition."

To settle the controversy, the BLM brokered a solution it thought would make everyone happy. Summo executives told the BLM they'd give up the firm's claim to New Mexico's Copper Hill in return for the title to 1,000 acres of public land in the Lisbon Valley. With the Utah land under private ownership, Summo could develop the property with virtually no federal oversight.

That deal was quietly negotiated by New Mexico BLM officials during a meeting with Summo executives in Taos. The parties involved expected a low-key resolution to a potential public-relations fiasco. What they got were accusations of secret deal-making by public officials and charges that Summo was being allowed to turn the Lisbon Valley into a toxic wasteland in exchange for sparing Copper Hill.

Indeed, even though the proposed land swap has since been vetoed by Interior Department officials in Washington, D.C., critics like Howe still view the suggested arrangement as part of a disturbing new trend. They fear that mining companies are using the 125-year-old federal law that governs mining on public lands to intimidate government officials into giving them ownership of valuable public resources.

The 1872 law gives those with valid mining claims an almost unassailable right to mine public lands. And when it comes to stopping environmentally destructive mines, the government often has few options. A 1990 proposal for a massive gold mine just outside Yellowstone National Park, for example, sparked a public outcry after critics charged the mine would harm the Yellowstone River and flood the park with toxins.

To stop the proposed New World Mine, federal officials last year struck a deal with the mine owners, offering them $65 million if they'd give up their claims to the area near Yellowstone. At the time, the agreement was widely hailed as a win-win solution (and a boost for President Bill Clinton's re-election campaign, since Clinton personally ventured to Yellowstone to announce the agreement). However, critics worry that the New World deal also made it clear that mining interests can virtually blackmail public officials by threatening to break ground on environmentally questionable projects, all in the hopes of being offered something better elsewhere.

Summo had been planning a mine in the Lisbon Valley long before the controversy over its proposed mine in New Mexico came to a head. But Howe and others say the BLM never would have called for giving Summo outright ownership of the land in Utah if it didn't feel there were few other ways to stop the Copper Hill mine.

"What you need to do if you're a mining company is propose the most offensive project you can, and then you can get paid off," says Jay Tutchton, a staff attorney with the National Wildlife Federation in Boulder who represents Howe and is now challenging Summo's Lisbon Valley mine proposal before an Interior Department appeal board. "Summo almost got paid off for the [New Mexico] mine with federal land in the Lisbon Valley. They wanted to save a nice mountain in New Mexico by trashing a valley in Utah."

Any comparison of the Lisbon Valley deal to the New World mine makes Hahn bristle. He says the BLM simply wanted to offer Summo title to land it planned to mine anyway and calls that a fair exchange for the company's willingness to abandon its Copper Hill project. "It's a far cry from the New World situation," he insists.

Tempers have continued to flare over the proposed land swap even though the BLM now insists it's a dead issue. "There's not an interest in BLM or the Interior Department to pursue the land-exchange idea," says Kate Kitchell, Moab district manager for the BLM.

And the BLM is still under pressure from environmentalists to throw out a controversial mining permit already issued for the Utah mine. The parties involved in the dispute are now trying to negotiate a settlement. But Summo's headaches are likely to become more common as attitudes toward mining in the mountain West become more critical.

For decades Westerners thought mining was part of the lifeblood of the region. Today the political power of the industry remains formidable--mining companies and their allies in Congress, for instance, have fought off all attempts to reform the nation's ancient mining law. But the industry's comfort zone is shrinking, even in areas like Moab, where mining has long been romanticized.

"As people from other areas move into the West, they're here to enjoy life, not make a living," laments Hahn.

Most public officials and residents of southeast Utah still want the relatively well-paying jobs that come with mining. "We support it 100 percent," says San Juan County Commissioner Bill Redd of the Lisbon Valley mine. "We're one of the poorest counties in America, and it would help support our schools and hospital."

But relative newcomers to the area, like Howe, are increasingly willing to oppose an industry that until now has always been welcome. And they're finding ways to challenge proposed mines in spite of the 1872 law that gives the industry remarkable access to public property.

"These people don't want there to be multiple uses of federal lands," says Hahn. "They want BLM land to be part of their backyard."

Hahn adds that many of the people opposed to copper mining don't want to acknowledge that their homes and cars are filled with copper wiring. "One lady in New Mexico told us, 'I don't need copper; I have enough pennies as it is,'" he recalls. "It's hypocritical to advocate against copper mining when you're a big copper consumer."

The new reality, however, is that even a place as isolated as the Lisbon Valley is known and loved by someone, in this case Kay Howe. Summo didn't expect that Howe and a small group of her friends could make as much trouble as they have. For that matter, neither did Howe.

"If we hadn't been involved, that mine would be operating by now," she says. "The BLM thought this thing would slide through like a breeze."

While Summo has been frustrated by the opposition to its proposed mines, the company has reason to persist. Copper prices fluctuate, but demand has been strong recently, and copper has been trading at well over $1 per pound. Since Summo's goal is to spend less than 60 cents per pound producing copper and it expects to extract 40 million pounds of copper per year from the Lisbon Valley, the company stands to make millions off the project.

Summo is a relative newcomer to the mining world. The company was launched in 1993 with financing from Denver-based St. Mary Land and Exploration Company, which sold Summo its claims on Copper Hill and has since invested in the Lisbon Valley project. Summo started selling shares to the public in 1994, and since the company has yet to actually break ground on a mine, the Lisbon Valley project is vital to its future.

The firm is actively exploring for copper in several locations, including the Cashin site in western Colorado (just fifteen miles from the Lisbon Valley) and the Copper Spur property thirty miles southeast of Hayden, Colorado. But it was the proposal to mine Copper Hill near Taos that really introduced Summo to the new reality of mining in the West.

The company conducted exploratory drilling for Copper Hill in 1996 and ascertained that there were valuable copper deposits on the property. But by the time Hahn met with residents last winter at the Picuris Pueblo, the community was already united against the idea of a mine. Hahn recalls confronting an ethnically mixed audience that reflected the changing population of New Mexico.

"There were seventy people in the room, and approximately fifty of them were Anglos," he recalls. "The people who recently came here from somewhere else were the most vocal opponents."

The widespread opposition to mining on Copper Hill also surprised public officials in New Mexico. "I've yet to have one person in northern New Mexico come to me and say they support the mine," says Mike Ford, the BLM's district manager in Albuquerque.

The objections to the mine in New Mexico were many. Along with the Indians and the ranchers, environmentalists weighed in, noting that Copper Hill hosts several endangered species, including the spotted owl. The locals also were turned off by the experience of Questa, a village 75 miles to the north, where acid runoff from a molybdenum mine has harmed a river that runs through town.

The public outcry didn't go unnoticed. At a public meeting in Taos last March, Ford startled Summo by publicly announcing that mining in the area was incompatible with the BLM's long-range plans. The BLM manager told the audience, "We are operating under the assumption that there is not going to be a mine."

Hahn says he was taken aback by Ford's unexpectedly bold statement. "I took exception to that," he says. "They shouldn't have approved our drilling if we could never be afforded the opportunity to mine in the area."

But the BLM didn't want to get into a fight with Summo over the proposal. What Ford didn't tell the Taos audience was that he'd already been negotiating with Hahn for several months, hoping to arrive at an agreement that would allow him to keep mining out of Copper Hill. During those negotiations, Summo proposed that in return for giving up its claim to Copper Hill, the company be given ownership of more than 1,000 acres in the Lisbon Valley. The proposed land swap didn't become public until May, after the National Wildlife Federation obtained documents outlining the discussion through a Freedom of Information Act request.

The NWF was alarmed by what it found, especially because the BLM had conducted the negotiations with Summo in private. "I think it's totally inappropriate they did that," says Jay Tutchton. "They're free to discuss swapping land--what's illegal is if they're considering that in secret."

Ford says the discussions with Summo were held behind closed doors because they involved a company in the private sector, and he insists there was no conspiracy to deal away public lands. "It's very offensive to me to be accused of this kind of behavior," he says, adding that any potential land swap would have to be voted on in Congress. "I couldn't make a secret deal even if I wanted to, because it requires congressional approval," he says.

But the land swap isn't the only issue that bothers the wildlife federation. Tutchton says he was also appalled by what he sees as a lack of environmental safeguards in the Lisbon Valley mining permit approved by Utah BLM officials last March. The Lisbon Valley mine was okayed without any requirement that Summo post a long-term bond to protect groundwater and without calling for reclamation of the pits the company would dig on the property. Tutchton says he believes the Utah BLM approved an environmentally reckless proposal under pressure from Ford in New Mexico.

As evidence, Tutchton points to the fact that Ford flew to Salt Lake City last January to discuss the Summo proposal with Moab's Kitchell. Tutchton theorizes that Ford made the trip to impress on his BLM colleague how important it was that Summo get what it wanted. "They deny there was a link, but they met and communicated," he says.

Ford, however, denies pressuring Kitchell to approve Summo's application. And Kitchell laughs when asked about Tutchton's theory, which she refers to as "the conspiracy." It's ridiculous to think that she and Ford somehow colluded to okay the Summo proposal, says Kitchell, who insists that Ford simply presented the idea of a land exchange between New Mexico and Utah. She says she told him it wasn't appropriate for her to even discuss that until her office's environmental assessment of the mine proposal was complete.

Kitchell adds that despite the suspicions of the mine's opponents, the Lisbon Valley is actually a good place for a mine. The valley already contains small, abandoned mines that cover about 85 acres, she says, and the area isn't close to any of the national parks and monuments that draw thousands of tourists to Utah.

But when Kitchell's office approved the Summo mine, it drew more fire from Tutchton, who noted that the decision was made just days before new regulations went into effect requiring all mines to post bonds protecting groundwater. The attorney cites this as proof of the BLM's eagerness to provide Summo with a sweetheart deal. "They tried to beat the gun," he says. "That's an example of the lunacy of this." In the event of massive contamination of the aquifer beneath the Lisbon Valley, he says, Summo might be tempted to simply declare bankruptcy and walk away from the mine, leaving the taxpayers with the cleanup bill. "These are future Superfund sites the public will have to pay for," Tutchton claims.

This past May, Tutchton, acting on behalf of Howe and one of her friends, filed an appeal of Kitchell's decision to issue Summo a mining permit with the Interior Department's Board of Land Appeals in Arlington, Virginia. The board surprised many people by issuing a stay of the permit in June, saying Summo couldn't proceed until it had ruled on the case.

That action sent the parties into private negotiations to try to reach a settlement. While neither side will reveal the content of those discussions, both Summo and the BLM say they believe an agreement will be reached in the coming months. "I think we'll have a resolution soon that's acceptable to everyone," says Hahn.

Environmental questions are especially critical at Lisbon Valley because the mine would employ so-called "heap-leach" technology to extract copper from the earth. Under that process, miners dig huge pits, pile up the ore, then drip sulfuric acid onto the piles. The acid leaches out the copper, which is then removed from the liquid. The process allows miners to reclaim copper from ore that previously was not considered rich enough to mine.

But heap-leach technology has proven unpopular with some of the neighbors of proposed mines. Disasters like the 1992 spill of cyanide and acid into tributaries of the Rio Grande at the Summitville mine near Del Norte--the mine's Canadian owner declared bankruptcy shortly thereafter, sticking taxpayers with a cleanup bill that may soar to more than $100 million--have made many people skeptical of the heap-leach process, even in areas that have traditionally depended on mining. The large pits that are left behind when the mines close also rankle many critics. Tutchton, for example, predicts that exposed pits from Summo's proposed Utah mine could turn the Lisbon Valley into one big toxic lake.

"There will be large open pits that will not be filled," he says. "Rain and runoff will fill the pits, and there will be trace copper and cadmium and zinc that will leach into the pits. Over time the pits become more and more toxic."

According to Tutchton, the open-air pits could become a burial ground for thousands of birds. "In the desert, these are like magnets for birds," he says. "A bird flying from the Colorado River to the San Juans all of a sudden sees this big lake. There are examples from gold mines where a duck lands and can't even take off."

Kitchell responds that the BLM is requiring Summo to post a $6 million surface-water reclamation bond. That money will be spent to fill in the pits only if it's shown that the water gathering there is acidic, she says. And according to Kitchell, it's not clear if the pits in the arid Lisbon Valley will turn into lakes in the first place.

Even as they bicker over the many aspects of the Lisbon Valley mine, there's one thing that everyone involved in the Summo controversy can agree on: The issue goes far beyond one mine. Behind the controversy over individual mine proposals like Summo's looms the larger issue of whether mining should be regulated by a law written 125 years ago.

"This is not an attack on Summo or the BLM but on the mining law of 1872," says the BLM's Ford of the National Wildlife Foundation's campaign targeting Lisbon Valley. "The mining law has been cussed and discussed at every level."

That law gives extraordinary leeway to hard-rock miners. Intended to encourage the settlement of the West, the law signed by President Ulysses S. Grant gives miners access to most public lands and exempts them from paying royalties to the federal government. By contrast, oil companies and coal mines are required to pay substantial royalties for resources taken off public property.

Once miners have proven they've discovered valuable minerals, they're even allowed to buy public land outright. Through a process known as patenting, miners can buy the land for $2.50 to $5 an acre. About three million acres of public land--an area the size of Connecticut--have been sold to mining companies under this provision.

In contrast to hard-rock mining, the coal-mining industry is governed by legislation passed in the 1970s that levies an 8 percent royalty on coal taken from public lands. That law--passed as a result of public anger over strip mining--also requires coal mines to reclaim the land after excavation and creates a trust fund to pay for the cleanup of abandoned mine sites.

In 1993 the U.S. House of Representatives passed a reform bill that called for an 8 percent royalty on hard-rock minerals and used that money to establish a cleanup fund for abandoned mines. The law also abolished the sale of public lands to private mining companies and required new mines to follow strict environmental standards. However, the bill came under attack from Western senators allied with the mining industry, including Colorado's Ben Nighthorse Campbell, and the U.S. Senate refused to approve similar legislation.

The resulting impasse now colors everything having to do with mining. Interior Secretary Bruce Babbitt regularly denounces the mining law as a ripoff and holds acerbic press conferences where he cites the latest mining deal as one more example of the theft of public resources. In 1994 a Canadian company bought a Nevada mine with $10 billion in gold deposits for about $10,000, and Babbitt called it "the largest gold heist since the days of Butch Cassidy." He has signed other land-title transfers with an ornamental silver pen from the 1870s while sitting under a huge portrait of President Grant.

For now, hard-rock mining operates in a sort of regulatory twilight zone. The 1872 law is still in place, but miners also have to follow the National Environmental Policy Act, which requires agencies like the BLM to prepare environmental impact statements for every mine. Mining companies usually promise to reclaim mine sites, and since 1981 the BLM has required that companies issue bonds for surface reclamation.

However, one person's reclaimed mine site can be another's wasteland. While the strict laws governing coal mines require that the land be returned as close as possible to its original state, reclamation of hard-rock mines is a much more uncertain process. The BLM's current standard is simply that a mine can't "degrade the environment unnecessarily," an open-ended description that can be interpreted any number of ways.

Environmentalists have responded to the legislative stalemate by waging what amounts to guerrilla warfare against mines all over the West. Instead of targeting the mining industry in Congress, they're now fighting mining proposals at the grassroots level.

"Community by community, people have to make decisions on how to deal with a mine they don't want," says Aimee Boulanger of the Mineral Policy Center. Boulanger's group played a high-profile role in the effort to get Congress to reform federal mining laws. When that failed, the MPC decided to target its efforts on the local level. Today Boulanger tracks mines all over the Southwest from her base in Durango--her job title is "southwest circuit rider"--and she says those opposed to environmentally destructive mines have to fight them any way they can.

"As long as we have the 1872 mining law, we don't have a lot of tools to use to protect public resources," says Boulanger.

Summo's Hahn predicts that if copper mining becomes too difficult in the U.S., production will move to completely unregulated locales overseas. "If you're thinking globally, is it really the best policy to encourage mining in the Amazon rainforest?" he asks.

But environmentalists like Tutchton say they don't want to end copper mining. They just want the industry to follow environmental standards that have worked well in other fields, including coal mining. "We're not out to kill this mine," insists Tutchton. "We want to make it a safe mine and a reclaimed mine."

Howe, who has lived in Moab for just over a year, says she's been appalled by the attitude of longtime residents toward mining. "When we started the appeal, we got a lot of flak that we were putting 143 jobs on the line," she says. "People here have this romantic illusion about mining. There's so much mineral wealth in Utah, [the state] could easily be trashed. The people here don't seem to care."

While Howe would prefer there be no mining in the Lisbon Valley, she says she's willing to accept a copper mine with strong environmental safeguards in place. She believes the mining industry needs to recognize that the public's attitudes are changing. "It's a really selfish industry that's gotten its way for 125 years," she adds. "They need to become a responsible industry."

Despite his legal jousting with Howe and her attorney, Hahn also believes the mining industry needs to change. He says too many miners are out of touch with the West's changing population--for instance, Hahn points out that other mining companies might have fought the BLM in court for the right to mine in New Mexico, whether or not the local residents approved. "I think what the mining industry has to do is recognize a paradigm shift has occurred," says Hahn. "There is a new West out here, and we have to recognize that."

As for the Lisbon Valley, he says he still believes Summo and the project's opponents can strike a deal that will allow the company to break ground on its first mine. "We're going a long way to meet their needs," he says. "We're not out to do things on the quick and dirty. We're not out to create any environmental nightmares.

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Stuart Steers
Contact: Stuart Steers